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The Patent Act of 2005

Posted by Hemos on from the the-joy-of-the-legal-age dept.

stevelaniel writes "The Patent Act of 2005 has been proposed, and at least one law professor has described it as "a surprisingly broad proposal to reform patent law. Among other significant changes, it proposes to scrap the first to invent standard in favor of a first to file standard. Other notables include imposing a rigorous duty of candor on applicants, limits on damages/injunctions and new standards for anticipating prior art." The Promote The Progress weblog is compiling source documents on the Act."

27 comments

  1. this is supposed to make it better? by override11 · · Score: 3, Insightful

    OK, so instead of 'who made it first', its going to be 'who files the patent first'?? Sounds like crap to me! So, someone invents something, and sells it in their home town. Someone else see's it, and rushes off to file a patent. Now the inventor is screwed, and how is this better?? What they need to do is educate the patent officers so they dont accept bull-crap patents on things like double clicking.

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    1. Re:this is supposed to make it better? by fearofcarpet · · Score: 1

      Given than patent fees start at $10,000 (at least the patents we file) and average $30,000 the "who files it first" idea will simply allow people (or companies) with deep pockets to steal others' ideas... There are ways to protect your invention (sort of a placeholder) for a year or so before filing a patent, but if you were unable to raise the funds to file a patent in time, then you'd be SOL, no?

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    2. Re:this is supposed to make it better? by ahknight · · Score: 4, Informative
      Did anyone read the bill before posting about it? The rule for patent acceptance is first-to-file, but a valid patent still requires first-to-invent.

      This is designed to clear the PTO's backlog, nothing more.


      102. Conditions for patentability; novelty
      (a) NOVELTY; PRIORART.
      A patent for a claimed invention may not be obtained if
      (1)(A) the claimed invention was patented, described in a printed publication, or otherwise known more than one year before the effective filing date of the claimed invention; or
      (B) the claimed invention was patented, described in a printed publication, or otherwise known before the effective filing date of the claimed invention, other than through disclosures made by the inventor or by others who obtained the subject matter disclosed directly or indirectly from the inventor; or
      (2) the claimed invention was described in a patent issued under section 151, or in an application for patent published under section 122(b), in a case in which the application or the patent names an other inventor and the application was effectively filed before the effective filing date of the claimed invention.
      (b) COMMONLY ASSIGNED INVENTION EXCEPTION.
      Subject matter developed by a person other than the inventor that would have qualified as prior art under subsection (a)(2) but not under subsection (a)(1) shall not be prior art to a claimed invention if the subject matter and the claimed invention were, not later than the effective filing date of the claimed invention, owned by the same person or subject to an obligation of assignment to the same person.
    3. Re:this is supposed to make it better? by xgamer04 · · Score: 2, Funny

      Did anyone read the bill before posting about it?

      Wait, you expected any different than the standard /. reaction?

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    4. Re:this is supposed to make it better? by mwvdlee · · Score: 1

      I may nog have invented the wheel first, but I'll be the first to patent it!
      Even better; I'll patent womens' clothing ;)

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    5. Re:this is supposed to make it better? by Arioch+of+Chaos · · Score: 2, Interesting

      "So, someone invents something, and sells it in their home town..."

      Well, to begin with, that would make it unpatentable in most countries (except the US) as it would no longer be novel.

      --
      IAAAL - I am actually a lawyer ;-)
    6. Re:this is supposed to make it better? by RootsLINUX · · Score: 1

      Wait, you mean the U.S. patent system can actually get WORSE!? I knew I should have stayed in bed this morning.

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  2. Compiling? by Anonymous+Cumshot · · Score: 1

    What CFLAGS are they using?

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    1. Re:Compiling? by saintp · · Score: 1
      CC='human' && CFLAGS='-fwithlawschool -fwithlotsofcaffeine' && make
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      Another one bites the dust
  3. First to file? by Short+Circuit · · Score: 4, Interesting

    I can't see that as helping much...it would seem to me to open the gates for people to crawl through places like WhyNot.net and newsgroups watching for people to RFC their ideas, and patent them.

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    1. Re:First to file? by GreyWolf3000 · · Score: 2, Insightful
      I think what this might mean is that companies that can hire a patent lawyer team can take individual's ideas and patent them. I hope not, though, please correct me if I'm wrong.

      This would mean a huge blow for proprietary software over open source software, because copyright would no longer protect us. Our ideas could be stolen retroactively.

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    2. Re:First to file? by Bruha · · Score: 2, Insightful

      Agreed, can you see Microsoft stealing any and every idea from Linux and patenting things that nobody bothered to Patent.

      Also this would be bad for software development as companies would be forced to submit thousands of patent ideas before actually building the product and if they decide against the product nobody else could do it because they'd have to pay the patent holder.

      The patent office would be snowballed instantly.

      Patents should stay as First to Invent.

    3. Re:First to file? by GreyWolf3000 · · Score: 1

      Reading through the other posts I can see that I was wrong. Please, no more upwards moderation.

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    4. Re:First to file? by SagSaw · · Score: 1

      I think what this might mean is that companies that can hire a patent lawyer team can take individual's ideas and patent them. I hope not, though, please correct me if I'm wrong.

      What first-to-file means is that if two inventors file an application covering the same invention, the patent would be issued to the first inventor to file. Currently, if two inventors file an application covering the same invention, the two inventors get to fight it out over who came up with the idea first.

      This would mean a huge blow for proprietary software over open source software, because copyright would no longer protect us. Our ideas could be stolen retroactively.

      No, because once you publish your software, the idea is no longer "novel", and (at least in theory) unpatentable. (IANAL...If you're truly concened, you should talk to one.)

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    5. Re:First to file? by GreyWolf3000 · · Score: 1

      Thanks. I actually already got the info from other posts :)

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  4. Improving challenge? by redelm · · Score: 3, Insightful
    I'd be more impressed if I saw a better challenge process in place. I don't much care if questionable patents are granted so long as they can be easily challenged. Preferably in: some sort of pre-grant filings to the examiner, post-grant challenge to the USPTO, and courts who do not automatically defer to the examiner's judgement.

  5. Why First To File Sucks by Doug+Dante · · Score: 3, Insightful

    "They patented THAT?!?! I've been doing that in this product for YEARS!"

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    1. Re:Why First To File Sucks by Arioch+of+Chaos · · Score: 2, Informative

      If you have been doing it in a non-secret way, their "invention" is not new and they should not get a patent. Your product is prior art.

      However, if it's a part of your secret production processes... In many countries you would then be allowed to continue as before but you would lose the ability to sell the technology as their patent would cover all other use.

      --
      IAAAL - I am actually a lawyer ;-)
  6. First to file by FidelCatsro · · Score: 1
    it proposes to scrap the first to invent standard in favor of a first to file standard
    So if i am understanding it corectly , is this taking an axe to prior art claim , so long as the prior art is not patented.
    That is worrying indeed , or poorly worded i do not know
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  7. In other words... by Anonymous Coward · · Score: 0

    it proposes to scrap the first to invent standard in favor of a first to file standard

    So, in other words, not only is prior art not a defence any more, but you can actually be sued for producing prior art? After all, if it's prior art, you are infringing on the patent by definition.

    Changes like this make everybody liable everywhere. If you don't patent absolutely every little thing that you do, somebody can file for a patent on something you did, and then sue you for doing it.

    Example: Microsoft sees a nice algorithm in ReiserFS 4. They patent the algorithm, and then sue Hans Reiser for infringing on their patent, even though he was the one that invented it.

  8. First to file is a good thing by alienw · · Score: 4, Interesting

    First to file does NOT mean you can take something that someone else invented and patent it. It means that when two people invent the same thing simultaneously, the first one to file the patent gets it. Of course, if the first person publishes the invention, it will become prior art, and therefore ineligible for patent protection.

    The first to invent thing was always kooky because it required inventors to keep very good records of when they invented what. When you get a good idea, do you run to a notary public to get it notarized? That's what "first to invent" requires as documentation. Every other country in the world uses "first to file" as the standard for patents.

    1. Re:First to file is a good thing by norwoodites · · Score: 1

      Isn't first to file already done, there is no difference from the current laws here really, move along.

    2. Re:First to file is a good thing by cpt+kangarooski · · Score: 1

      However, first to invent is superior, as it rewards inventors, rather than mere latecomers, and it's also arguably required by the constitution.

      Just because every other country does something stupid doesn't mean that we should Hell, our copyright laws have generally gone down the tubes as a result of looking at foreign copyright laws.

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    3. Re:First to file is a good thing by Dausha · · Score: 1

      Of course, if the first person publishes the invention, it will become prior art, and therefore ineligible for patent protection. Except, on first blush, the law reads that 1) the prior art must be published by the inventor, and not another individual and 2) the publication must precede the patent filing by one year. That means that if somebody publishes, then somebody else could file in a year. That is first blush, of course.

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    4. Re:First to file is a good thing by servoled · · Score: 2, Informative

      Look up interference practice in the MPEP sometime.

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    5. Re:First to file is a good thing by nerdlyone · · Score: 1
      When you get a good idea, do you run to a notary public to get it notarized? That's what "first to invent" requires as documentation.

      I don't think that is correct. You can verify your invention was invented on a given date in many ways. Any evidence of when you invented would be relevant--lab notebooks (which good scientists keep), witnesses (which is why people get their lab notebooks signed), computer files are all evidence.

  9. bad terminology by bersl2 · · Score: 1

    So shouldn't it be called something like "first to file AND invent"? Something that better describes the requirements?